사용자, 사용자단체와 교섭창구 단일화 및 공정대표의무 - 대법원 2016두42654 판결과 대법원 2016두41248 판결을 중심으로

임상민 사법발전재단 2021 사법 Vol.1 No.56

The Korean Supreme Court recently rendered two decisions(Supreme Court Decisions 2016du41248 and 2016du42654). These decisions dealt with the issue of whether the execution of a collective agreement made through multi-employer bargaining with a supra-enterprise trade union under the procedure for simplification of bargaining windows violates the duties of fair representation or not. The Supreme Court ruled as follows: 1) the duties of fair representation are violated if the employer’s association distributes welfare fund only to a representative bargaining trade union; and 2) in such case, the labor relations commission has the right to issue a correction order not only to an employer’s association but also to the employer. This article comments on the validity and adequacy of the above decisions based on a review of the legal principles underlying the simplification of bargaining windows and duties of fair representation. The main points in this article are: 1) in addition to the representative bargaining trade union, the employer also shoulders the duties of fair representation to eliminate or correct irrational discriminations on an active basis; 2) in a case where the employer’s association enters into a collective agreement through multi-employer bargaining with a supra-enterprise trade union under the procedure for simplification of bargaining windows, not only the employer’s association but also the employer will be bound to the duties of fair representation and subject to a correction order; and 3) when an employer’s association engages in multi-employer bargaining with a supra-enterprise trade union, the procedure for simplification of bargaining windows is not compulsory. However, in my opinion, if the employer’s association enters into a collective agreement through multi-employer bargaining with a supra-enterprise trade union under the procedure for simplification of bargaining windows on a voluntary basis, the procedure for simplification of bargaining windows is valid, and therefore the duties of fair representation should be held to be applicable to such procedure. 대법원은 최근에 사용자단체가 초기업별 노동조합과 교섭창구 단일화 절차를 통해 통일교섭을 거쳐 체결한 단체협약의 이행이 공정대표의무를 위반하였는지에 관한 판결을 두 건 선고하였다. 대법원 2018. 12. 27. 선고 2016두41248 판결(대상판결1)과 대법원 2019. 4. 23. 선고 2016두42654 판결(대상판결2)이 그것이다. 대법원은 대상판결들에서 다음과 같이 판단하였다. 1) 사용자단체가 교섭대표노동조합에만 복지기금을 지급하고 다른 노동조합에는 복지기금을 지급하지 아니한 것은 공정대표의무 위반이다. 2) 위 경우에, 공정대표의무 위반을 이유로 사용자단체 외에 사용자에게도 시정명령을 할 수 있다. 이 논문은 교섭창구 단일화와 공정대표의무에 관한 법리를 논한 후 위 판결들의 타당성을 검토한 것이다. 이 논문의 내용을 요약하면 다음과 같다. 1) 교섭대표노동조합 외에 사용자도 적극적으로 불합리한 차별을 제거 또는 시정해야 할 공정대표의무를 부담한다. 2) 사용자단체가 교섭창구 단일화 절차 내에서 통일교섭을 통해 단체협약을 체결한 경우에, 사용자단체 외에 사용자도 공정대표의무를 부담하고 시정명령의 대상이 된다. 3) 사용자단체가 초기업별 노동조합과 통일교섭을 하는 경우에는 교섭창구 단일화 절차가 강제되지 않는다. 그러나 임의로 교섭창구 단일화 절차를 거쳐서 단체협약을 체결한 경우에 교섭창구 단일화 절차가 유효하고 공정대표의무도 적용되는지에 관하여는 심층적인 검토가 필요하지만, 개인적으로는 긍정적인 견해가 타당하다고 생각한다. 부정하는 견해를 취한다면 대상판결2의 판단에는 문제가 있고, 긍정하는 견해를 취한다면 대상판결2의 판단은 타당하다.

직장 내 성희롱으로 인한 사업주의 불법행위책임 여부 - 대법원 2017. 12. 22. 선고 2016다202947 판결을 중심으로 -

고철웅 한국민사법학회 2018 民事法學 Vol.85 No.-

The Korean Supreme Court decision on Dec. 22. 2017 (2016da202947) is significant in that it is the first ruling to propose legal principles concerning the employer’s liability for his adverse act against the third party. This article analyzes the decision of a subject with two main themes. First, it has to be examined whether unfair disciplinary action or disadvantage against fellow worker who assisted victims violates the duty of protecting his injured workers. The court found that the above act was not unreasonable from the various evidences and the original court ruled that the above act was not subject to unfair measures under the Equal Employment Act. On the other hand, the Supreme Court affirmed the employer's respect for the employees and the obligation to protect his employees and stated that it would violate the duty of the employer’s protection “unless there were special circumstances”. Also the Supreme Court found the employer’s obligation to protect workers was considered to include not only for the victim's actions but also for the third party. It should be examined how such a duty of protection could be applied to the discussion of precedents jurisprudence and doctrines. In Japan, the initial jurisprudence constituted a jurisdiction as a duty similar to the precautionary jurisdiction of safety, but later established a jurisprudence on the obligation to care for the workplace. Afterwards, the obligation to care for the work environment was upgraded to the obligation of care from the obligation of consideration in the legislation by amendment of the equal employment opportunities for men and women. The court ruled that it is necessary to consider not only for the victim but also for the surrounding people of the victim after the occurrence of the sexual harassment of the employer. Second, it should be considered whether the employer has taken unfavorable measures against the fellow worker who helped the injured workers in close proximity so that it violates the Civil Code Article 750 or not. In the past, the responsibility of the employer in the precedent case was generally recognized as the employers’ vicarious liability of the Civil Code Article 756. In case of sexual harassment, since the 2000s, case law has widely recognized the employers’ vicarious liability under Article 756 of the Civil Code. It seems that the remand court adopted this legal structure. However, the Supreme Court ruled that it was not the employers’ vicarious liability in Article 756 of the Civil Code but the liability of the employer for the illegal acts under the general liability of Article 750 of the Civil Code. It is based on the Civil Code articles 750, 752, 763 and 393. In addition, as a criterion for third party limitation, the object judgment refers to “close relationship” or “intimacy with contents of social or legal relationship”. The criteria for delimiting the range are meaningful, but it seems that there is unclear point as a standard. In the past, there has not been much discussion about the relationship between the responsibility of the employer in Article 750 of the Civil Code and the responsibility of the user in Article 756 of the Civil Code caused by certain acts of the employer. The object judgment has a theoretical meaning as a judgment with important judgment in this regard. 대상판결은 제3자에 대한 불리한 조치로 인한 사업주의 불법행위책임의 성립여부에 대한 법리를 처음으로 제시한 사안으로서 의의가 있다. 본 평석은 아래의 두 가지에 관해 대상판결을 분석한다. 첫째, 피해근로자 등을 도와준 동료 근로자에 대한 부당한 징계처분이나 불이익 조치가 사업주의 피해근로자 등에 대한 보호의무를 위반한 것인지에 관해서 본다. 1심은 각종 증거로부터 위 행위가 부당하지 않다고 보았으며, 원심은 위 행위가 남녀고용평등법상 불리한 조치의 대상이 될 수 없다고 하였다. 반면 대상판결은 사업주의 근로자에 대한 인격존중 및 보호의무를 긍정하며, “특별한 사정이 없는 한” 사업주의 보호의무위반이 된다고 판시하였다. 사업주의 근로자에 대한 보호의무는 사업주가 피해자 본인에게 가한 행위 뿐 아니라 제3자에게 가한 행위까지 미친다고 보았는데, 이와 같은 보호의무가 종래 판례, 학설의 논의와 어떻게 접목될 수 있는지에 대해서 검토하였다. 일본에서는 초기 판례는 보호의무를 선행법리인 안전배려의무와 유사한 것으로서 법리구성하였지만, 나중에는 직장환경배려의무에 관한 법리를 독자적으로 구축하였다. 그 뒤 직장환경배려의무는 남녀고용기회균등법 개정에 의해 입법상에서 배려의무에서 조치의무로 격상되었고, 판례는 사전조치 뿐 아니라 사후조치까지 배려해야 한다는 법리로 발전시켰다. 대상판결은 사업주의 성희롱 사건 발생 후 사후조치 관련해서도 피해자 뿐 아니라 피해자의 주변인에게까지도 일정한 배려를 해야 한다는 점을 판시한 것으로 중요한 의미를 가진다. 둘째, 사업주가 피해근로자 등을 가까이에서 도와준 동료 근로자에게 불리한 조치를 한 것이 민법 제750조의 일반불법행위책임이 성립한다는 판시에 대해서 검토한다. 종래에는 판례상 사업주의 책임은 사무집행 관련성을 넓게 인정하여 민법 제756조의 사용자책임으로서 법리구성해 왔던 것이 일반적이었다. 성희롱의 경우도 판례에서 2000년대 이후 민법 제756조의 사용자책임을 넓게 인정해 왔다. 대상 판결의 환송심도 이러한 법리구성을 채택한 것으로 보인다. 그러나 대상판결은 민법 제756조의 사용자책임이 아니라, 민법 제750조의 일반불법행위책임에 의해서 사업주의 불법행위책임을 인정하였다. 그 근거로 민법 제750조, 제752조, 제763조와 제393조를 들고 있다. 또한 제3자 한정을 위한 기준으로 대상판결은 “밀접한 관계” 내지 “사회적 또는 법률적 관계의 내용과 친밀성”을 거론한다. 범위획정 기준을 제시하였다는 점에서 의미가 있으나 기준으로서 불명확한 점도 없지 않다고 생각된다. 종래에는 사업주의 일정한 행위로 인한 민법 제750조의 사업주의 책임과 민법 제756조의 사용자책임이 어떤 관계를 가지는지 많은 논의가 있었던 것은 아니다. 대상판결은 이와 관련하여 중요한 판시를 한 판결로서 이론적 의미를 지닌다고 할 수 있다.

사용자 지시권의 내재적 한계와 제한의 결정원리

방준식(Bang Joon-Sik) 한국노동법학회 2007 노동법학 Vol.0 No.24

In employment relations, the employer's directions should be based on employment contracts. Even though employment contracts are valid between the employee and the employer, the directions have a legal limit. Employer's directions should be regulated by general legal principles, such as fairness and good faith. Thus, I intend to explore the legal base, internal restrictions and legal principles in relation to the employer's directions in this dissertation. Employer's directions cannot be directly inferred from employment relations nor from social positions, but rather are based on employment contract as contract rights. As the employee and the employer make the contract, the employer could have the authority to direct the employee's work and the employee should have the obligation to follow the directions. Consequently, the employer's directions can unilaterally determine the contractual contents of an employee's duty to work at one's own discretion as a part of the responsibilities of the employee. Because it is a discretionary power against the employee in employment relations, the employers' directions need essentially to be limited on justice. Above all, the employer's directions could be limited to equality in power to specify the terms of the employment contract, the employees' self-determination and equal treatments in employment conditions. Furthermore, it should be under the control of constitutional rights, legislations, collective agreement, workplace rules, employment contracts and industrial practices. One needs to consider three stages when looking at the limit of the employer's directions. First, it explores the mind of both parties by the interpretation of the employment contract. If the implicit and explicit agreements can be certified, the employer's directions should be excluded in employment relations. Second, it compares the employer's interest with the employee's interest on the contents of employer's directions. If employer's directions have the potential to violate the objective and common interest of the employee, the directions should be legally denied. Third, the principle of fairness and good faith can be applied in exercising the directions. It needs to compare the management necessities of the company from the position of the employer with the employee's disadvantages in the workplace and also the personal losses of their family life as specific as possible.

사내도급 고용관계에서 부당노동행위 책임 – 미국 공동사용자 원리와 비교

김미영 노동법이론실무학회 2017 노동법포럼 Vol.- No.21

The contract work has been used by many employers to cut down the labor cost or to avoid the collective bargaining with labor unions in their business. The user company as a user employer, substantially has controlled the service of employees who are employed by the supplier company, as a employer. The user employer can avoid the liability of unfair labor practices in the Labor Union Act, because it has been denied as the statutory employer under the Act so far. But there are many cases that the user employer has practically infringed the labor rights of contract employees provided by the employer. Then, some labor law scholars argue that the contract work has undermined the effectiveness of the Labor Union Act as well the system of unfair labor practices. Now, we need the way to include the user employer in the concept of statutory employer to comply with labor laws in regard to the collective bargaining system and unfair labor practices against contract employees in its workplaces. The statutory employer is not required to be parties in only bilateral relations for employment. If user employers in tripartite relations allow contract employees to work in their own business, it is sufficient to be the statutory employer for labor laws.

복수사업주하에서의 사용종속관계 및 근로기본권

이상윤 ( Lee Sang Yoon ) 연세대학교 법학연구원 2021 法學硏究 Vol.31 No.1

Currently. the indirect employment, in which the using employer receives labor from workers while the employing employer handles employment and working conditions of workers, has been increased, In consequence, the employer becomes “multi employers” composed of using employer and employing employer, and the complicated labor relations has emerged among multi employers and workers. The characteristics of labor relations under multi employers is that the subordinate labor relationship is distributed between multi employers, and that working conditions of workers can be determined indirectly through employing employer on which using employer has great influence. Through indirect employment, while using employer has the advantage of reducing the cost of labor management, it may infringe the Constitutional labor right of workers by converting the legal duties of using employer to employing employer. For example, under the subcontract system, the using employer may be excused from the legal duty because of the fact that he/she has no subordinate labor relationship with the workers. However, even if the using employer has no subordinate labor relationship, he/she may has the legal responsibility if he/she has the substantial influence on the determination of working conditions. The Constitutional labor right should be protected regardless of the number of employers and the formation of employment conditions. The Constitutional labor right should not be restricted, reduced or excluded by using of the multi employer system. In order to this purpose, the unifying application of concept of subordinate labor relationship is necessary as a standard of judging worker status under multiple employers system.. The subordinate labor relationship, which is distributed between using employer and employing employer, should be aggregated and judged as one condition. Each employer, in consequence, has the responsibility of fulfilling its legal duty in accordance with the part of subordinate labor relationship of which he/she is sharaing. Accordingly, the using employer, although he/she has only a part of subordinate labor relationship, has the duty of protecting labor right of workers. In this paper, I suggested that the unifying standard of subordinate labor relationship should be adopted for determining the legal status of workers under the multi employer system.

수급인의 불법행위로 인한 도급인의 책임

이은희(Lee Eun-Hee) 충북대학교 법학연구소 2009 法學硏究 Vol.20 No.1

The basic rule is that an employer is not liable for the torts of his independent contractors but there are a number of exceptions to this general rule. None of these exceptions, however, is a form of vicarious liability, for one of them is strict liability and in the others of them it is the breach of a duty owed to the claimant by the employer that gives rise to liability. At this point it is important to distinguish between cases in which the employer has been personally at fault, and cases where he has not been at fault, but by the contractor's act a primary duty owed by the employer to the claimant has been broken. Where the employer is at fault liability cannot be said to be strict. If, for example, the contractor has been employed to do something unlawful, such as digging up the street without statutory authority the employer will be liable for damage resulting from the contractor's negligence. The employer is taken to have authorised or ratified the tort. Similarly, the employer is liable on the basis of his personal fault if he has himself been negligent in selecting an incompetent contractor, or in employing an inadequate number of men for the job, or has interfered with the manner in which the work was performed in such a way that damage is caused. If the employer discovers that the contractor's work is being done in defective and foreseeably dangerous way, he may be liable if he condones the contractor's negligence. This is another instance of personal fault by the employer. Where a statute imposes an 'absolute' duty on an employer, responsibility for its performance cannot be delegated to a contractor. If care is not taken by the contractor, the employer's duty is broken. The employer is liable in addition to the contractor and would normally be entitled to an indemnity, so the practical effect of imposing liability on the employer is to make him a 'guarantor' of the contractor's solvency.

사용자책임의 본질과 그 면책의 법적 의미

한삼인(Sam-In Han),정두진(Doo-Jin Jung) 충남대학교 법학연구소 2011 法學硏究 Vol.22 No.1

민법 제756조 제1항 본문에는 사용자책임을 규정하고 있지만, 이 규정만으로는 사용자에게 피용자의 가해행위에 대한 책임을 부담시키는 근거는 무엇인지 또, 피용자의 불법행위에 대한 사용자책임이 대위책임인지 자기책임인지 분명하지 않다. 또한, 이러한 사용자책임의 근거와 법적 성질과 밀접한 관련이 있는 것이 동조 제1항 단서에 규정되어 있는 면책사유의 법적 의미인데 동조 제1항 단서에서는 사용자는 피용자의 선임과 사무감독에 상당한 주의를 다하였다는 것, 또는 상당한 주의를 하여도 손해가 있었을 것이라는 두 가지 면책사유 중 어느 하나를 입증하면 책임을 면할 수 있다고 하고 있다. 이는 사용자에게 과실이 없음을 이유로 사용자의 면책을 인정하고 있는 것으로 과실책임주의와 관련하여 면책규정의 법적 의미를 어떻게 보느냐가 문제 된다. 따라서 이글에서는 우선 사용자책임을 인정하는 이론적인 근거와 법적 성질에 대해서는 사용자책임을 일률적으로 설정하기보다는 사용관계를 가사적인 사용관계와 기업적인 사용관계로 이원화하는 입법을 통하여 전자(일반규정)에 대하여는 이를 보상책임과 과실책임으로 보고 후자(특별규정)에 대하여는 기업책임과 무과실 책임으로 해석함이 타당하다고 보았다. 또한, 이와 관련된 제756조 제1항 단서 면책규정의 의미와 그 법적 성질에 대해서는 사용자책임을 과실책임으로 이해하고 다만, 입증책임만을 사용자에게로 전환하는 입증책임의 전환규정으로 이해한다고 하였다. 한편, 사용자책임의 책임주체에 대한 변화를 위한 시도로서 ‘분산적 면책입증’이론과 ‘기관에 대한 법인의 책임으로 구성’이론도 있었지만, 우리 판례에서 이들 이론은 거론되지 있지 않고 있다. 오히려 판례는 사용자의 면책을 거의 인정하지 않음을 통하여 사용자책임을 거의 무과실책임에 가깝게 운영함으로써 더욱 보상책임의 원리실현에 충실하고 하고 있다고 본다. 그러나 이러한 학설과 판례의 태도는 보상책임의 원리와 피해자의 구제에는 충실할 수 있지만 보다 근본적으로는 현행 사용자책임규정의 법 개정을 통하여 실현되어야 할 것으로 보았다. In the main text of Article 756 (1) of the Civil Act, the employer responsibility is defined, but this provision alone is not clear what is the basis for employer to impose responsibility on the offense of employee, and also, whether the employer responsibility is subrogated responsibility of self responsibility on the illegal act of employee. In addition, one that has close relationship with the basis of such employer responsibility and legal property is the legal implication of the cause of immunity defined under the proviso of Paragraph 1 of the same Article, and this proviso of Paragraph 1 of the same Article states that the responsibility can be exempted by proving any one of the two causes of immunity in having the employer to fulfill its reasonable care in hiring and supervision of employee or the damage is likely even with the reasonable care. This is to acknowledge the employer immunity with the reason that employer has no negligence that the issue is how to look at the legal implication of the immunity provision in relation to the principle of responsibility with fault. Therefore, under this Article, with respect to the theoretical basis to acknowledge the employer responsibility, the employment relationship is divided by domestic one and corporate one with the former to be considered as the compensation responsibility and the later to be considered as the corporate responsibility, and the legal property of the employer responsibility is the self-responsibility of employer and the intrinsic nature is to be considered as the responsibility of negligence, and along with such provision, the employer responsibility is understood as the responsibility of negligence on the legal property and implication of immunity provision of proviso for Article 756 (1), however, it is understood as the conversion provision of responsibility of proof into the responsibility of proof on employer. In the meantime, there is a theory to attempt for changes on the responsibility subject for employer responsibility, but this theory has not been mentioned in our precedented cases. Rather, the precedented cases almost not recognize the employer immunity to operate the employer responsibility closer to the non-negligent responsibility to be more substantiated to realizing the principle of compensation responsibility. However, this academic principle and attitude of cases may substantiate in relief of victims and principle of compensation responsibility but it is considered to be realized through the fundamental provision of law on the current employer responsibility provision.

사용자의 개념정립과 그 확장범위에 관한 법적 연구

방준식 노동법이론실무학회 2013 노동법포럼 Vol.- No.10

The concept of employer is the other party against the concept of the employer in Labor Standard Act and the other party against the employer in Trade Union Act. However, because the employee in Labor Standard Act is different from the employee in Trade Union Act. The concept of the other party, employer is also different from any persons in the company. It is not right to list equally the concept of employer in Article 2, Section 1, number 2 in Labor Standard Act and the one of employer in Article 2, number 2 in Trade Union Act. I think the concept of employer in Trade Union Act should be classified in detail in regard to many systems of collective labor-management relations. For this reason there is no definition-clause about employer in Trade Union Act in Japan. Employer, the other side of employment contract or collective bargaining should be analyzed focusing 'employer'. Any person observing the law in Labor Standard Act and Trade Union Act should be also analyzed focusing 'employer'. Because a manager or any person acting as an Agent of an Employer could regard as a performance assistant. A manager employed any employee independently beyond the scope of the employer's mandate regardless of his employer, a manager will be an independent employer as far as employees are concerned. Because a employer has nothing to be employed. Finally, any person acting as an agent of an employer concerning matters about employees also would not be a employer of employment contract, but be applied to Labor law,

휴업수당 제도의 비교법적 검토 ― 독일, 일본, 우리나라를 중심으로 ―

이초롬 한국노동법학회 2024 노동법학 Vol.- No.89

According to the principle of employment contracts, if a worker does not provide labor even though an employment contract has been concluded between the employer and the worker, the worker cannot claim wages for providing labor from the employer (Article 655 of the Civil Act). If a worker's contract default occurs without the responsibility of both labor and management, and the worker cannot claim wages, he or she will inevitably experience difficulties in making a living. In Germany, Japan, and Korea, workers have been forced to pay wages or shutdown allowances to ensure their livelihood in the event of a business failure (shutdown) that occurs without the responsibility of both labor and management. In the past, in Germany, through theories and precedents, there was discussion about expanding civil law provisions or applying general principles of labor law to impose wage payment obligations on employers in cases where management difficulties occur due to the loss of a factory, interruption of energy supply, shortage of raw materials, or administrative orders. Recently, Article 615 of the German Civil Code clearly stipulated the employer's obligation to pay wages in case of management failure. On the other hand, in Japan, Article 26 of the Labor Standards Act stipulates that if a shutdown occurs due to reasons attributable to the employer, a shutdown allowance equivalent to 60/100 of the average wage must be paid to ensure the worker's minimum living. This regulation allows employers to pay suspension allowance even in cases where business failures cannot be attributed to the employer under civil law. In Korea, if an employee fails to provide labor due to no responsibility of both labor and management, the labor and labor laws are interpreted so that wages can be claimed from the employer through Article 538, Paragraph 1, 1st sentence of the Civil Act or Article 538, Paragraph 1, 2nd sentence of the Civil Act. There have been conflicting views on applying the provisions of Article 46 of the Standard Act on suspension of business due to reasons attributable to the employer to pay suspension allowance. The current conventional wisdom and precedents believe that Article 538 of the Civil Code and Article 46 of the Labor Standards Act are in a competitive relationship. In Germany and Japan, if a work stoppage occurs due to force majeure, the employer is not obligated to pay wages or leave allowances. Currently, the prevailing view in Korea is that there is no obligation to pay wages and closure allowances if a suspension of business occurs due to force majeure. However, there is criticism that the scope of interpretation of ‘force majeure’, which is excluded from the reasons attributable to the employer in Article 46, Paragraph 1 of Korea's Labor Standards Act, is unclear, and as a result, criminal liability is imposed as a reason for not paying leave allowance. If so, it also violates the principles of legality and clarity. Meanwhile, in Korea, Article 46, Paragraph 2 of the Labor Standards Act, independently stipulates a system for reducing the leave allowance that allows some or all of the obligation to pay stoppage allowance to be reasonably adjusted. Therefore, the concept of business suspension and the interpretation of the scope of the employer's obligation to pay suspension allowances also need to be changed to suit our country's reality. In other words, I think that it is necessary to interpret the suspension of work due to reasons attributable to the employer as defined in Article 46, Paragraph 1 of the Labor Standards Act to include suspension of work due to force majeure as well as the neutral area of both labor and management as a suspension that occurred against the will of the worker. The suspension system under Article 46 of the Labor Standards Act is not a system that unilaterally imposes wage responsibilities on the employer to protect workers during the period. Rather, labor and management share th...

간접고용하의 부당노동행위 사례와 보호방안

조규식 한국비교노동법학회 2010 노동법논총 Vol.19 No.-

This paper is made aiming at protecting the three major labor legislation for employee's employed indirectly under the diversified labor types due to changes in companies' management environment. Dependency of employee's are closely related to a service provider who supplies employee's and a employer who employs dispatched employee's. So the concept of a employer about the employee's under indirect employment is determined by the fact that who is the real employer and the employer is subordinated to the responsibility of a employer. Unlike in the past, it reflects the reality that employers has a certain substance and performs the functions of control on employee's partially. Traditionally, direct and specific conducts and order relations were an essence of dependency but now is the time to go further to consider who structurally determines the working relations and who is in the position of infringing the three major labor law and to admit whether he/she is a worker or not. The content discussed in Korea these days shows negative points against the concept of employer accepted by precedents and divided points that the employer and the employer have responsibility and a real employer has a responsibility on partial part exceptionally that the real employer dominates: both points admit the expansion and division of the concept of a employer under the labor law. Those different points are just differing in which one weighs more on the complex and various situations in labor reality and there is no need to consider which one is right. Accordingly, it is needed to establish a necessary standard for reality considered interpretation by admitting the scope of a employer under the labor law broadly and when it comes to the three major labor law, it is also needed to interpretate the law elastically for third employer to insist the three major labor law by adding the right to organize centered theory in the right to collective bargaining centered theory.